Merit, Speech Disability and
Discrimination

Abstract

There is a substantial body of evidence - going back over
decades - which indicates that the employment sphere is difficult
for those who suffer a speech disability. To a large extent, I
argue, this is due to the setting of merit in terms of
orality and aesthetic. It also relates to the low perception of
competence of the speech disabled. I argue that to be effective
against discrimination the notion of merit and its assessment
requires focus. 'Merit' as a concept in discrimination law has
had its critics, yet it remains important to investigate it as
social construct in order to help understand discrimination and
how to counter this. For example, in this article I look at an
instance where the resetting of what was viewed as 'meritorious'
in judicial recruitment successfully improved the diversity in
lower judicial posts.

Further, given the relative failure of the employment tribunal
system to improve the general position of those who are disabled,
I look to alternative methods of countering disability
discrimination. The suggestion provided is that an enforced
ombudsman type approach capable of dealing with what may be the
core issue around employment discrimination ('merit')
would provide a better mechanism for handling the general
situation of disability discrimination than the tribunal
system.

1. Attitudes towards Stammering in
Employment

There has been disability discrimination legislation in
existence since the passing of the Disability Discrimination
Act 1995 (the relevant legislation is now the Equality
Act 2010) until which time disability rights were - where
they existed - paternalistic and limited. [2] Although
providing two decades of protection, a report for the Equality
and Human Rights Commission (EHRC) suggested that there is a
difference of nearly 30 per cent in employment rates between
disabled people and the total working-age population [3]
indicating that although there may be a formal protection for
disability, in practice there is substantive discrimination still
in existence. This EHRC report covered all forms of disability -
from physical to long term health to mental health. This paper
concentrates upon one of these - speech disability. [4]
Speech disability of the type discussed here is a 'useful'
disability to consider in the employment context because it is
not particularly linked to other disabilities nor ill health and
may offer a perspective to how to better handle discrimination,
should it exist. I outline the particular problems of the speech
disabled group here and suggest that we should wonder whether the
legislative approach to date (based upon tribunal case-by-case
litigation) is really the best way to create the 'Fairer Britain'
which the EHRC currently sees as its target. [5] Calls to
the EHRC's helpline certainly indicate that employment issues are
significant for disabled people with over half of the calls in
2008/09 related to employment issues coming from this group.
[6]

Stammering/stuttering [7] - the speech disability relevant
here - is viewed as affecting around 1% of adult populations,
with 80% being male. This figure appears to be consistent across
populations and cultures. [8] While it certainly affects many
fewer than might gender discrimination, it is - if these figures
are correct - a disability which affects over half a million in
the UK to some extent or other and around 7.5 million across
Europe. Effects may lie between relatively mild and situation
specific to chronic, though almost all stammering has a
significant situational element. Stammering is a relatively
complex disability, where some measure of genetic cause may be
found, [9] and has the potential to give rise to
psychopathologies in those who are non-robust, indicating that
the disability can have substantial effects upon the mental
health of those who lack protective coping or support mechanisms.
[10]

In the 1980s and 1990s there were a number of research studies
which investigated the perceptions by the non-disabled of speech
disability and the competence of the speech disabled. These
remain important, because perception may be a barrier more than a
disability and more recent research has confirmed that these
perceptions remain. [11] In one early paper Collins and Blood suggested:

"It has been reported that negative attitudes toward a person
with a disability may be more handicapping than the disability
itself. … The literature in the area of attitudes toward
the disabled suggests that non disabled individuals feel
uncertain and uncomfortable around the disabled. …. These
feelings of uncertainty and discomfort regarding appropriate
behaviour in the presence of the disabled contribute to negative
perceptions by the non disabled." [12]

Their research was an attempt to find strategies to alleviate
the negative attitudes towards stammering as found by, for
example, potential employers, and a goal which was optional to
employers since there was no legal requirement on employers to
accommodate disability: it was at that point up to the individual
to find means of overcoming a negative bias in potential
employers. The map of employment law has now changed and there is
an onus upon potential employers to be pro-active in order to
make reasonable adjustment for the disabled. [13] It is
clear from research that a major barrier to those who are
disabled face in employment is the initial job interview, and
that this is particularly the case with those whose disability is
a stammer. For example, early research by Atkins and Kent on the
attitudes of employers concluded:

"… recruiters are more willing to hire qualified
individuals who exhibit what may be considered unattractive
appearance features than they are those individuals exhibiting
communication difficulties. Moreover, this is further
substantiated by the fact that out of 20 job selection variables
listed …., recruiters overwhelmingly ranked overall oral
communication skills first, indicating that this item is the most
important. Furthermore … overall oral communication skills
also tied with enthusiasm, indicating those two variables to be
the most critical to success in the hiring process of the 20
characteristics listed." [14]

Similarly, Warhurst and Nickson examined the trend which was
emerging at that time for employers - particularly in the rapidly
expanding service sector - to choose staff for their
self-presentation skills rather than technical skills or
experience. [15] They noted that Government training
policy must urgently address this demand, or risk the creation of
an employment underclass who don't meet the "aesthetic''
standards of prospective employers. In the new economies, the
employment situation appears to be even more communication and
appearance-led. Stammering is, of course, a disability which is
usually accompanied by unwanted facial movements and poor
presentation. Research by Craig et al. [16] on employer
attitudes to a control group of stammerers and a group utilising
a speech fluency method (which reduced stammering by using a
relatively artificial speech technique) found that the employers
were more positive towards the treated group, thus indicating
that other facts being equal (that is, the same individual with
the same 'merit value' [17]) is more positively viewed in the employment context
when he or she exhibit a less speech disabled persona. [18]

Much of the understanding of employment issues can be read
indirectly from these early attitudinal studies towards
stammering - it has negative connotations and clearly affects the
perceptions of the ability of the stammerer to perform. In
another early paper,Employer Attitudes toward
Stuttering, Hurst and Cooper carried out a questionnaire
survey of some 644 employers. [19] They concluded that
"while the majority of employers rejected the idea that
stuttering interferes with job performance, they agreed that
stuttering decreases employability and interferes with promotion
possibilities." Interestingly almost all employers felt that
despite the negative impact of stammering on employment,
affirmative action for stammerers should be rejected. Silverman
and Paynter attempted to quantify perceptions of occupational
competence when stuttering was present. The results demonstrated
that the more professional the occupation, the greater the impact
stuttering had on views of competence:

"While both the lawyer and the factory worker who stuttered
were viewed more negatively than others in these occupations, the
negative impact of stuttering on the "appearance of competence"
was greater for the former than for the latter. There were more
than twice as many scales on which the lawyer was judged more
negatively than was the factory worker. … In fact, the
lawyer who stuttered was judged to be less competent than peers
on the competent-incompetent scale, but the factory worker who
did so was not." [20]

Worse, since it was not only competence which was viewed as
problematic, but the very psychology of the sufferer was seen to
be a problem:

"… a lawyer who stuttered was judged to be more afraid,
confused, tense, discontented, frightened, lazy, dependent,
uncomfortable, naïve, and disorganised than his or her
peers, as well as less intelligent, employable, competent,
educated, confident, talkative, mature, secure, natural , witty,
stable, dominant, rich, sane, alert, and aggressive than his or
her peers."

Hayhow et al. [21] in a UK questionnaire study of
stammerers concluded that it is in school life and employment
that most stammerers feel that the disability is most pronounced.
Some of the responses included suggestions to the stammerer that
they should not bother applying for promotion unless their speech
fluency improved or became more controlled. The DDA was in force
during the period of the study, yet appeared to have made no
impact upon the employment of the respondents.

Generally the literature on attitudes to stammering has been
consistent over the past few decades and can be encapsulated by
noting that there is frequently embarrassment from people who
interact with stammerers [22] , negative stereotyping
of the 'personality of stammerers'; [23] a general
attitude that stammering is intimately linked with issues of
competence and the difficulty of educational achievement.
[24] Even those who are
professionally intent on a career in speech therapy are not
immune to holding negative attitudes. Leahy, for example, carried
out quantitative analysis of student therapist attitudes to
stammerers [25], suggesting that stereotyping
was as prevalent amongst this group as amongst the wider
population, though she does suggest techniques for bridging the
gap in understanding between therapist and stammerer may be
possible.

Whilst external application of stigma to the speech disabled
exists, there is also a measure of self stigmatisation. [26] In a recent paper Butler has
noted - that alongside discrimination from employers seeking
'aesthetic labour' - those who stammer also constrain themselves
in the roles that they seek due to the perception that their
speech does not 'fit the role'. [27] She suggests
that "presentational rules mobilized in the recruitment process,
specifically during a job interview, offered challenges for
participants. However, prior to this there was the dilemma of
whether to declare their stammer on their application. Two men
said they had on one occasion 'decided to come out on the form';
both reported that they did not progress beyond that stage".
[28] The interview is a particularly
difficult time, as Butler notes, "[t]he word most often used when
discussing their success in the recruitment process was
'grateful'". We look to the interview situation below.

We can conclude from the literature that attitudes to
stammering mirror the attitudes to other disabled groups and
justify the inclusion of speech disability within a disability
context. Yet the problem remains that stammering is an extremely
complex impairment without - unlike other forms of disability -
any clear reason for its existence and one which manifests itself
in complex behavioural responses. [29] It is also a
complex social phenomenon involving presentational and oral
communication difficulties and thus a potentially challenging
disability to which employers can respond.

2. Social Models and Medical Classification
Systems

While the social model of disability is one which many
disabled people prefer, it has had its difficulties as a concept.
The original idea behind this was to refocus the 'problem of
disability' from being one which was the problem of the disabled
person to that of the context in which the disabled person has to
operate. As Oliver, the initiator of the concept, has written,
"we were not disabled by our impairments but by the disabling
barriers we faced in society." [30] In terms of disability
action this was purely positive, encouraging a more collective
attitude towards resolving attitudes towards the disabled
group rather than putting the emphasis upon the disabled
person as an individual who had to sort out their own
problems - a model which emphasised difference and impairment.
Criticisms of the social approach were frequent, Oliver noting
that "these came from the major charities and many professional
organisations who felt that their dominance in our lives was
under threat." Oliver's recent view thus argues the need for both
perspectives (rather than dumping the social model) and is
instructive in that it emphasises that without a generic
understanding of the social context of disability, the disabled
suffer the political outfall of only an individualised
(ideological) framework towards resolving discrimination. The
argument in this paper reflects the position of Oliver - speech
impairment exists and each person differs situationally, but the
social context in which the impaired have to operate remains a
very substantial barrier to participating in a full life.

A medical model of disability has existed and was developed to
include both physical and environmental factors thus reflecting
the social context of disability. During the 1980s and '90s, the
international disability rights movement encouraged radical
change in how people with disabilities are considered in terms of
their rights, and what is needed to secure those rights. Critics
pointed out that the earlier WHO classification system
(International Classification of Impairments, Disabilities, and
Handicaps - ICIDH [31]) largely ignored the personal
impact of disability, and the disabling effects and barriers that
restrict people with disabilities from acceptance within society.
Hurst outlined the effects of the use of the ICIDH's definition
of people with disabilities in terms of a functional
limitation:

"It perpetuated the idea that non-disabled people were normal
and disabled people were not normal… it has underpinned
our exemption from the mainstream, from civil society and from
humanity itself… It perpetuated the concept of disability
being another word for incapacity, impairment or lack of
functioning - that is a problem within the individual that had to
be changed to conform to 'normality." [32]

Similarly, the scope of the classification's terminology was
limited as it did not take account of those with health problems,
but who were not particularly limited in participation in life,
perhaps because of their personal adaptations, coping skills, and
attitudes to dealing with problems. Other concerns included the
role of the environment as hindering or helping limitations
imposed by disabilities; and its focus on activities that could
not be performed, while not addressing those activities a person
could perform. [33] De Kleijn-De Vrankrijker
[34] describe the differences
between the ICIDH and the ICF in terms of the 'exteriorized',
'objectified' and 'socialized' elements of impairment, disability
and handicap respectively, contrasting with environmental
factors, combining with personal, individualized activities and
participation elements of the ICF. Three important principles of
the ICF are: universal application; an integrative approach with
individual features as well as social factors important in
understanding the disability and intervention possibilities; an
interactive approach that recognizes complexities in
disabilities. [35]

Recent European case law and the introduction of the UN
Convention on the Rights of Persons with Disabilities has
left some confusion over just what role the social model now
occupies in European law. In Chacón Navas v Eurest
Colectividades SA[36] it is generally taken to be
that the social model of disability was ignored by the court and
a more constrained definition of disability was focused upon:
"physical, mental or psychological impairments and which hinders
the participation of the person concerned in professional life."
Commenting upon Navas, Waddington suggested that "by
embracing the medical model of disability, and focusing on the
limitation caused by impairment and the need to prove such
limitation, the Court's decision flies in the face of values
underlying the Directive and Community disability policy, and
thereby create barriers to achieving the goals of the Directive".
[37] The UN Convention's preamble
takes a more social perspective: "[r]ecognizing that disability
is an evolving concept and that disability results from the
interaction between persons with impairments and attitudinal and
environmental barriers that hinders their full and effective
participation in society on an equal basis with others." [38] For the purposes of this paper,
looking as it does at the professional arena, the divergence
between European and national definitions is not so relevant, yet
clearly decisions of the European court of this sort pose
difficulties for the disability movement.

We can conclude that we have a situation where the social
context of disability is recognized by WHO; equality of
employability is recognized through the CJEU's definition of
disability; and the Equality Act 2010 similarly promotes
equality of employment. However, as we see in the next sections,
the assessment of merit for the stammerer continues to be
problematic.

3. Adjusting merit institutionally

There are critical perspectives on the notion of using a raw
notion of 'merit' as a conceptual tool in research writing on
discrimination. For McCrudden the term is problematic and
suggests that "the use of the merit principal is unnecessary,
given that it is possible to identify those separate elements
which appear to underpin different conceptions …" [39] McCrudden's argument
has been well known for more than a decade, but has failed to
make traction: 'merit' remains a concept to which recourse is
made in everyday employment matters and discussion of
discrimination because it is such a useful one. But although
there is, of course, no single philosophical notion which we can
point to, and McCrudden is correct to highlight this, that does
not indicate that the term is functionless. 'Merit' remains
important and its nature will be argued over - language is
agonistic [40]
and even in mathematics concepts are not fixed [41] - and of course it will have
multiple meanings: it is a social construct dependent upon its
social usage and investigating such usage is just as important as
philosophical analysis. In this section, therefore, we look at
one investigation of 'merit' and suggest that it remains a useful
tool for the discussion of appointments and promotions in the
employment context. The particular point to be emphasised here is
that it is possible, through analysis and resetting of how merit
is calculated, to improve a situation which has been commonly
viewed as discriminatory: that is, that it is possible to
institutionally rejig 'merit'.

A project led by the author for the Judicial Appointments
Commission of Northern Ireland (NIJAC) was two part. In the first
element [42] what
was interesting was which issues were relevant to those who
applied for judicial posts in Northern Ireland and whether there
were any which were particularly female-centric. In that first
research we found that NIJAC and the new model of open
competition for judicial posts which had been introduced had
brought about a change in both attitude and success in
appointment: women were being more successful in being appointed
to judicial posts and that they were being seen as positive role
models for others. The open competition model appeared to be
attractive (except to the bar) since it measured 'competences' in
a variety of ways, including written examination. [43] The research
findings were positive and indicated that a structural and
institutional approach could effect employment change given an
agency actively tasked with bringing about change. However, this
change had not reached the High Court in Belfast, or indeed the
bar, where all judges were male and where a more male dominated
approach was reported (e.g. some fields of practice were
described as 'chick law' fields).

The second part of the research focused more on the barriers
to the High Court and the assessment of merit and competence for
those higher judicial roles. The project used, together with
interview and focus groups, an online survey with a variety of
vignettes [44]
describing individuals who had less traditional career paths than
were to be found in the existing High Court judiciary. Here we
found that assessment of merit and competence was much less open
and directed towards what was described by our respondents as a
more 'male oriented' notion, thus setting barriers in the face of
female and non-traditional applicants. The difficulty to our
respondents was that merit and competence were being assessed in
a different manner than in the lower judicial competitions. Women
[45] who were
surveyed and interviewed about the nature of the High Court
judicial selection task indicated scepticism that meritorious
women or other non-traditional candidates would be appointed - a
particular problem in the High Court in Belfast where there are
no women on the bench (and, at the time of writing, there are
still none). The scepticism was rooted in the view that there was
a certain model of 'ideal candidate' who met certain professional
expectations, and that these expectations were more likely to be
met by male candidates (that is, 'male oriented'). These
expectations were based around a notion of 'merit' which was
easier for men to demonstrate. To succeed women had to perform in
a male manner rather than have an appointments system which
reflected the differing ways in which women can 'make a
difference'. [46]
As this research project into judicial appointments was underway,
it appeared to me that there were clear parallels in the 'problem
of assessing merit' between women and the speech disabled and
discussing speech disability within a wider context might help
elucidate the research findings on speech and employment. The
goal of this section is thus not to compare and contrast women
and the speech disabled, but to utilise our understanding of
research on women and employment to better understand how to
counter employment discrimination of the speech disabled.

This is not an argument which is only relevant to candidates
seeking to be senior judges, since as other academic commentators
have suggested, there is a view in many professions that the
assessment of 'merit' is at the heart of the failure of women in
all sectors of society to advance to the upper reaches of
professional life. For example, some have talked about the merit
ideal of the 'hero model' of leadership being one which many men
are comfortable with and many women are not, despite it having
had negative consequences. [47] The difficulties women face in law are hardly
novel in terms of professional fields: in medicine in the UK,
more women than men have entered medical school since 1990 but
women have failed to participate proportionately at management
level despite the availability of part-time working etc. Given
the changing structure of the UK health service (with clinical
commissioning groups), this means that the failure to occupy
management roles is happening at lower levels of management than
previously. The suggestion in this article is that disability,
too, can be seen as problematic when merit assessment is made on
grounds which effectively discriminate when a disability runs
counter to an ideal of 'best'.

'Merit' is to do with 'being worthy', and surely few involved
with professional roles could wish to appoint or promote someone
who was not worthy of that post. 'Merit' is thus a concept which
is at the heart of any appointments system. Unfortunately, whilst
being a simple term it is not a concrete, atomic concept - it is
a social construct of the group who are deciding what is
meritorious. In judicial appointments, merit is just as much a
construct as in other areas and what constitutes merit is defined
by relatively small elites - most usually the existing judiciary
who have a significant input into any judicial appointment
system. Malleson, as with other commentators, has dealt with this
when she notes that merit has been constructed around the needs
of "certain preferred groups in a way which as unfairly
advantaged them". [48] To Malleson, writing in 2006, such a statement was no
longer controversial, but it is not clear that she reflects the
situation outwith the academic sphere. Paterson and Paterson's
recent critique of the Supreme Court appointments system echoes
Malleson, in part, but suggests that merit should be seen in a
more contextual manner and take into account the needs of the
court as a body rather than as a group of individual judges
chosen 'as best' on the day. [49]

Perceptions of merit are, it is suggested, a fundamental issue
with regard to the lack of equality in employment matters. In our
NIJAC research, it certainly did not appear that those senior
judges involved in making appointments to the High Court were
consciously discriminating or had any intention to discriminate:
indeed, they appeared to take the view that if there were
meritorious women seeking higher judicial appointments, then they
would be appointed. The problem to the appointers was that there
was simply a lack of meritorious women candidates. When our
project suggested that there was a strong view that such female
candidates existed, there was a measure of surprise from these
senior members of the judiciary that this was so. Their view
appeared to be that if such candidates existed then they should
come forward and be assessed - that is, that it was the fault of
the potential applicants who were hiding from the assessment
system. The view external to the appointment process was that
there were indeed meritorious candidates, simply that they were
not being recognized as such. More generally, if discrimination
through merit assessment exists and is systemic one must wonder
how equality is to be resolved - if an appointment process seems
rational, well designed, directed towards the 'best candidate' on
the day, and yet delivers a biased output, it is difficult to see
how an unbiased output can be delivered without removing the
existent central assessment of what is 'meritorious'. In our
judicial appointments project, this appeared to be what female
lawyers were saying: that non-traditional but meritorious
candidates should be seen as worthy, rather than have to model
themselves upon a traditional view of judicial merit. The nature
of merit being sought under the current appointments, they
suggested, was too narrow and too self-serving for one group and
that a different view of merit was required.

What was the difference between the competitions for the lower
judicial posts and the higher judicial posts? It seemed to us
that NIJAC was being left free to positively open up the lower
roles to non-traditional candidates through a re-assessment of
what was required in terms of merit for these posts, but was not
being left to do so at the higher judicial level where the view
of merit used in the appointments process was quite widely seen
as based on qualities mainly possessed by the bar, and to be
based on seniority and experience of advocacy in court. The
senior judges were thought to underline this view of merit and
ensure its over-riding importance in the appointment process.
Women generally believed themselves less likely to be seen as
having this sort of merit or have the opportunities to gain
it.

The argument relating to assessment of merit with respect to
speech disability is developed below, but one conclusion which
can be taken from the NIJAC research is that it is possible to
effect change through an active counter-discriminatory agency.
However, even given an agency willing to undertake this task, it
is not always possible to do this given sufficient opposition
from those who are enabled to control the assessment of merit and
competence: that is, NIJAC as an agency was free to change the
assessment of merit in the lower judicial arena, but not in the
upper arena. Is there, therefore, some means whereby such lessons
regarding active agency might be moved over to resolving the
discrimination which - as we argue below - surrounds
disability?

More generally with regard to women, the existence of the Sex
Discrimination Act from 1975 might suggest that some four decades
of litigation would have levelled the playing field sufficiently
so that the most blatant forms of discrimination against women
had been resolved. Evidence, though, continually suggests that
while some women may have been relatively successful in the
employment field, for the majority there remain perceived
problems of discrimination based upon their gender. For example,
surveys of women in employment indicate that being of child
bearing age, pregnant, or having children can be seen to be a
significant problem. [50] It may be argued that this is
not truly reflective of the workplace at large and that the women
being surveyed are simply incorrect in their view that they
suffer as against male colleagues but other more concrete pieces
of evidence suggest that female earnings continue to be
substantially below those of males generally. [51] Further,
that the perception of sex discrimination exists is indicated by
the discrimination which is cited most frequently in England and
Wales Tribunals is that of sex, with some 14, 700 in 2011/2, the
last full annual statistics published. [52] It is in this
context that the success of NIJAC in producing an employment
context where women seeking lower judicial posts should be
viewed: our respondents felt that the new commission arrangement
had brought about real change against gender discrimination.

4. Assessing Merit

There were a number of complaints in our judicial appointments
research project about how merit was being assessed. For example,
there was a very strong view that being a barrister with a
certain kind of practice (high value and/or prominent case load
rather than family matters), being relatively senior (with far
more experience than the formal requirements suggest), and 'being
seen'. This latter aspect was particularly difficult for women
and that, "the requirement to succeed is that you must think just
like a man, you must act like a man ... be as good as a man".
[53] Other
suggestions noted that no matter what the standard of the woman's
work, environmental factors would undermine their ability to
compete equally with males:

"men can stay on here [the bar library] and then go home to a
cooked dinner, the kids in bed, and go straight into the study
... they can hang around here ... do their work in the library ..
networking in an informal way ... they can run into someone in
the servery or on the stairs ... and get worked passed on".

"most of the women at the bar are juggling not only their
practice but also their family life ... and I have watch my male
peers at the bar advance far beyond me... they have good wives at
home

"there is a very much a message - any time that you seek
advice - that you won't get on as far as the men ... don't let
your expectations get too high .. it's not what you know, it's
very much the golf and the rugby".

"young male law students are more savvy - not necessarily
about being a judge - but about making contacts ... to make a
successful career ... which may lead to a judicial career because
they have done all the right things".

These are the same kinds of complaints made in other
professional areas. Sealy has discussed the changing perception
of meritocracy that women who had progressed to upper levels
(director level) within the banking world have during their
career. Her interviewees suggest that women begin their careers
believing that merit will win through, albeit that they might
have to change their behaviours to accord with the existing rules
of the game. But overall, while they may have 'outsider status'
they would be judged on merit and as equal to male peers. Sealy
reports that this initial perspective changed as they developed
an understanding of how their organisations worked and they began
to understand that "the adaption to more masculine norms did not
fit with their need for integrity and authenticity and was 'not
sustainable'". Effectively, pressure was being applied by the
women upon themselves to act in a male manner in order to be
successful, but as their careers progressed and they did become
successful such behavioural change was found to be difficult to
continue as they felt a discontinuity between how they would
prefer to undertake their role and how they felt they were
expected to behave. Sealy described this as 'The Imposter
Syndrome':

[…] one day I'm going to get found out. And everyone's
gonna go "well actually, she's not really very capable". And I
don't know a single man who feels that [laughs]. They all think
they're brilliant and perfectly capable. And yet virtually every
woman I know here who is successful at what they do feels the
same way." [54]

The kinds of male behaviours which were viewed as requisite
for success in the banking world were more political (in the
office politics sense) and could be seen as being the opposite of
meritocracy since one could be a less effective member of staff
but a more successful member of staff by excelling at office
politics rather than the task in hand. And the lack of senior
women in the organisation indicated a symbolic shadow over the
more junior women who begin to "question the meritocratic
processes of their organization". [55] What was effectively the case, the
female Directors believed, was that merit was not as relevant as
social capital, and that as they progressed up the ladder this
became more obvious. This new understanding of context affected
their own personal view of critical career decisions.

Women in medicine - and their paucity in higher roles - have
similarly been researched. Here part-time working has been
available and while there has been progression to Consultant
level posts, there has been limited movement into clinical
director posts. Newman's medical interviewees, [56] who have moved from practice
to management roles, did not provide any counter to the view that
family commitments must be dealt with in a male-manner: "Women
doctors describe being inspired to work by their mothers, and
supported by their husband's family, nannies, friends, job shares
and a few colleagues. Robust child care and back up 24/7 was seen
as essential. They considered the money they spent on childcare
was an investment in their career." And the requirement for
connections, too, required a male-approach: "Having good networks
and social capital was seen as a prerequisite for success."

Thus when we look to the literature of other professional
groups, we see exactly the same problem of male-oriented merit
which we see in law. If success is to be got, those male paths
have to be followed. The lesson from those women who have been
successful appears to be that there is little point in having
part-time careers. Instead, get a nanny. No connections through
the golf club? Then find other ways to build up that social
capital. And find sponsors who will help push your career
through, just as male sponsors do (even if there is a lack of
available 'sisters' to do this [57]). We see the problem: merit is defined in one
particular manner, and to succeed you must accept and meet that
definition. The conclusion might be that those women who have
successfully risen to higher levels, are not particularly
representative of women at large.

Move this argument onto the speech disabled and we see
commonality: the social environmental factors which make
communication difficult and which tend to reduce the visibility
and perception of competence of this group, make it harder to
build the social capital which brings success. If fluent women
find it difficult, then it must be expected that the non-fluent
suffer proportionately more - there is no equivalent means of
'investing in childcare' for the speech disabled as they attempt
to build a non-fluent career in a world where merit is biased
towards orality and presentational skills. Butler, indeed,
suggests in her research that there is some relationship between
the stammerer and non-male behaviour patterns. She suggests:

"Findings largely align to extant literature where 'strong',
'powerful' and - most importantly in this study - 'fluent' are
linked with masculinity and with being 'respected' at work. This
verbal style was in stark contrast to the way in which the
participants reported that they presented. The men discussed the
omnipresent quest for sounding right in the workplace and
described their inability to achieve the required level of speech
fluency in terms of a verbally activated emasculation. This
research aligns with prior work in this regard, but contributes
to our understanding of the interaction between masculinity and
speech in describing how the men responded. Specifically,
participants emphasized their holding of what are typically
regarded as 'female' communication traits, as exemplified in
'listening capital'. They referred to these traits positively -
against the inferiority claims of prior studies of emotional
labour, service work and men … - being described by one
participant as a 'gift'." [58]

It becomes clear, perhaps, that if the positives - if there
are positives - are considered that the notion of merit can be
extended to understand that communication is a more complex and
nuanced process than simply being fluent. Unfortunately, the
research evidence suggests that employers rarely pick up on that
argument, and whilst an employment tribunal may, the precedent
set by the Employment Appeal Tribunal in Wakefield
(below) will make it exceedingly difficult to do so in the
future.

5. Speech and Tribunal Case Law

It is not the intention to produce a review of speech
disability case law here, but it is important to view the
problems found through trying to resolve discrimination through
case law. The paucity of cases (given the number of speech
disabled and the evidence of employment difficulty) indicate that
it is not a path which is chosen by many. Further, the case law
which has developed might be seen to have acted counter to the
general desire to improve the situation of the speech disabled.
Tyrer's analysis of litigation relating to stammering lists only
13 cases where decisions have been provided by the Employment
Tribunal (ET) or the Employment Appeals Tribunal (EAT). [59] In one, the
applicant was unsuccessful because he was held not to be in
employment (rather he was a franchisee in a driving
school). [60] The
earliest case, Shaughnessy v The Lord Advocate, [61] involved a lawyer
who would avoid utilising the phone and other avoidance
strategies. Tyrer's synopsis highlights some of the complexity of
stammering behaviour:

"The report of the employer's expert said that the applicant's
stammer was "primarily a covert or interiorised one, in that it
may not be obvious to everyone he meets as he manages to control
and conceal it in many situations so it is variable in its
obvious severity. He uses a lot of word substitution and pausing
to control his speech", so getting his message across might take
him longer and his speech might sound a little convoluted because
of substitutions. The report cited the view of stammering as "an
iceberg, with the statutory nine-tenths beneath the surface,
consisting of concealment behaviour, false roles, tricks, fear,
avoidance, guilt, shame, and the far smaller proportion above of
the 'stammering behaviour' itself." Although the overt stammering
behaviour was mild, said the report, the effect of the stammer on
his ability to perform normal day-to-day activities had a much
greater impact because of his fear, anxiety, avoidance and
expectation of stammering, resulting in a moderate disability.
The applicant had managed his stammer by 'organising' his life,
choosing work and leisure pursuits which were not going to put
undue speaking demands on him, or by avoiding potentially
difficult speaking situations altogether."

Despite the employer's expert's view the Tribunal held that
the affect was 'not substantial' and the applicant was
unsuccessful in his claim. The 2006 Guidance on Definition of
Disability[62] however posited a similar example situation
suggesting that it would indeed involve "substantial adverse
effects". Two Employment Tribunal cases involved what would now,
under the Equality Act 2010, be harassment. In
Anderson v Walkers Snack Foods[63] the applicant was unsuccessful
because the employer had made some adjustments, and in Browne
v John Edward Crother Ltd, [64] the employer was held liable for
abuse and taunting.

Of the remaining cases, the most relevant for this paper are
those which relate to recruitment and promotion and highlight the
difficulty of providing reasonable adjustment to the problems of
presentation to an appointing panel. In Y v Bradford
Council[65]
adjustments allowing pre-set interview questions were discussed;
in Shirlow v Translink an already employed applicant did
not - in interview - provide sufficient examples and evidence of
competence; in Y v Calderdale[66] the tribunal made suggestions as to
how better a stammerer might have been interviewed and tested for
the position. In Wakefield v HM Land Registry, which was
an Employment Appeal Tribunal (EAT) decision, the applicant was
found not to have sufficient oral skill to be promoted. [67]Wakefield
is the most interesting for the discussion here since we see two
diverse approaches taken by the ET [68] and the EAT. There was one legal
issue which arose from this case (no right for an employee to
demand specific adjustments) but the more relevant issues to this
article are around the perversity which the EAT found in the ET's
findings (and the criticism of their use of language). The
applicant had applied for a more senior post where one of the
requirements was "Excellent communication skills." The applicant
had been offered the opportunity to see questions before the
formal interview in order to help prepare answers - though the
suitability of this adjustment is not clear since the candidate
would still have to speak - rather than the request, "my
preferred adjustment would be not to have the oral examination by
the interview panel." The ET decision dealt with the assessment
of merit through the human resources (HR) 'cherished' process and
concluded that:

"5.3 … Had an oral "test" been necessary as a means of
judging capability to do the job, it could have been an arguably
good reason to interview orally. First we do not believe oral
skills were anywhere near as necessary as Ms Kemp or Ms Norris
now say. Second the interview process did not replicate the
situations in which such oral skills as were necessary would be
needed to be used. This is not a good reason.

5.4 Why then were the respondents so resistant? We do not
believe Ms Kemp or any of the HR group are hostile to the
claimant or to disabled people. They are wedded to the view
that oral interview is the only fair way of assessing the
comparative worth of candidates for any senior position. We
accept that some, but not many, disabled people may use their
disability to gain an advantage. Mr Wakefield is plainly not such
a person. The fear of Ms Kemp is, in our view, that "giving
in" as she sees it to Mr Wakefield's demands might be the "thin
end of the wedge" which will ultimately lead to the "integrity"
of HMLR's cherished promotion procedures being undermined.
Intransigent refusal to change procedures for testing and
assessment are the greatest source of disability discrimination
of the type we see here. The respondent's witnesses were at
pains not to say what we have just found to be in Ms Kemp's mind.
However in the absence of any credible explanation that is all
that is left. So powerful is the evidence that we do not need to
think in terms of reversal of any burden of proof. As May LJ said
in Noone v North Thames RHA and Neill LJ repeated in
King v Great Britain China Centre the inference is
"almost common sense".

5.5 There is no doubt that the claimant was discriminated
against by a failure to make reasonable adjustments in connection
with his application for the training manager's position. ..."
[My emphasis]

The argument of the tribunal was that it was 'common sense'
that the formalistic approach of the HR department was
problematic and did not allow the abilities of the applicant to
be properly tested - that is, that despite oral communication
being poor in an interview situation it did not mean that in the
everyday work situation the candidate would not be able to
perform the role sufficiently well. The 'merit' being assessed by
the HR process was not, the tribunal suggested, that which was
necessary for the job role. The EAT took a decidedly different
view, suggesting that it was clear from the job description that
oral communication skills were at the heart of the post and thus
agreeing with the notion of merit which HR posited:

"[90] We have earlier set out the
relevant parts of the advertisement and job description for the
[applied for] post. The list of essential experience and
skills includes "excellent communication skills" which, we note,
is not limited to skills in written communication. We are
unanimously of the view that a fair reading or understanding of
these documents as a whole leads to the conclusion that the post
involved oral communication skills; see in particular bullet
points 3, 4 and 5 in the list of main duties in the job
description. The post was, it was not in dispute, a senior
management post; its holder would have to manage a training team;
such a task ordinarily surely requires oral communication skills.
We must, of course, not substitute our view for that of the
Tribunal; but, applying the test in Yeboah v Crofton set
out above at paragraph 52 we conclude that any other
understanding of the relevant documents could not reasonably be
reached. "

The perspective from the EAT was that since oral skills were
required in the post (though not specifically stated in the job
specification) there was a requirement that oral skills should be
tested and that an interview was the appropriate way to do that
rather than by any external assessment of past performance in
current post. Further, the employer seems to have taken the view
that since the post might well involve aggressive situations
where the appointed individual has to deal with confrontation, if
they could not deal with an interview situation, they were hardly
likely to be able to deal with the post itself. Of this Tyrer
suggests:

"The EAT here seems to assume that an interview was, on these
facts, an appropriate way to assess how the communication of
someone who stammers will be in the job. With respect, this is
wrong. Stammering can vary a great deal between different
situations. For very many who stammer an interview will be a
situation where stammering effects are more severe. A person may
find 'confrontational' situations, for example, or some of them,
significantly easier. … The EAT may have assumed that a
relatively supportive atmosphere at the interview would make
speech easier than in a confrontational situation. As in the Ohio
case though, that is not a fair assumption to make. Just by way
of an example, I don't remember that I [Tyrer was a
lawyer] had much of a speech problem when negotiating with
someone - it was one of my easier situations.

The employer seems to have made a similar assumption as
regards size of meeting. Notes from the evidence given by one of
the employer's witnesses included: "If cannot perform in a 3
panel, highly unlikely to cope in a large meeting at senior
level." However, it cannot be assumed that a person will find
smaller meetings easier than larger ones (size may be a
contributing factor, but so may other important factors). Also,
and most importantly, a job interview is different from a work
meeting large or small. Furthermore, the possibility of
reasonable adjustments in the job needs to be considered."

Just how reasonable adjustments might be made will depend upon
a number of factors and no doubt will depend upon negotiation
between the speech disabled person and the potential employer,
although in this situation there appears to have been no such
agreement. However, for the purposes of this paper, what is
important is that it seems to be that the EAT are suggesting that
for a senior role requiring good communication skills one
must prove oral skills in interview: just the situation
where most feel pressure upon fluency. We noted earlier that
research indicated that the interview was a particularly
difficult process for the stammerer - indeed Butler suggests that
expectations from interviewees about how successful they might be
in the job market are low and that it is only when particularly
required skills are held by the stammering applicant that
employers will be supportive. [69]

One can, of course, communicate well and not be fluent - a
stammerer can get his point across in meetings through a variety
of non-fluent means or use various strategies. [70] Yet the EAT appeared to take a
highly simplistic view of the situation - a discussion of 'merit'
perhaps which indicates that only fluent candidates might be
meritorious. Little wonder that Tyrer accused the EAT of
perpetrating stereotypes.

Finally, a subject which is legally current is 'lookism',
relevant where - as Middlemiss points out [71] - indirect discrimination might be
found where there is another primary discriminatory factor.
Speech disability with associated facial contortions might lead
to employers refusing to employ not because of the stammer,
per se, but on the linked behaviour. In Primmer v
Mayflower Kebabs, the tribunal awarded a redheaded female
employee £17,618 for unfair dismissal and sexual
harassment. The difficulty of proving this, as Middlemiss
suggests, would depend upon the ability to collect relevant
evidence.

6. The problem with Tribunals

For an individual who believes that they are or are being
discriminated against, there is the legal avenue of an Employment
Tribunal if there is no alternative means of resolution.
Tribunals, which were set up as a quick and simple means of
resolving disputes, [72] have become more complex [73] and many believe that employment
law and practice has become one of the more difficult areas in
which to adjudicate and that lawyering in this field is also one
of the most legally complex. [74] The disabled individual who wishes to seek a
remedy has three possible outcomes from a tribunal:

That there was disability discrimination;

That there was no disability discrimination (albeit there
may have been behaviour which was problematic by the
employer);

That there was discrimination but that it was not of an
unlawful kind e.g. the employer was justified (as in
Wakefield in seeking oral skills for a specific post
[75]).

Assuming that the applicant views each of these as an
equally likely outcome (which, of course, is not true - we are
not throwing dice) the complainant has only a 33% chance of
success. With the near necessity to have legal representation due
to the complexity of the process, it potentially becomes
difficult financially for an individual to undertake a process
where the odds are not balanced or are not slightly in their
favour. Success, of course, will result in a financial (but not
usually costs) award. This can be relatively high with the
highest in 2012/3 being £387,472. [76] However, the median award was
£7,536 and the average, £16,320 which might or might
not cover the cost of representation (costs have now increased
due to the introduction of fees). If the first possible result
(that there was disability discrimination) is more difficult to
prove in an adversarial context, then the odds fall further for
the complainant. Given an employer who 'ticks the relevant boxes'
in terms of disability support, then it is likely that these
lower odds will be the case. Further, for the speech disabled the
use of a tribunal itself may well be problematic - the need to
present a coherent and lucid case does not necessarily sit well
with a lack of fluent speech. [77]

This presumes that the goal of the applicant is financial.
While cost is relevant in terms of fighting a tribunal case, the
evidence that the primary aim of undertaking litigation is to
gain financial awards is scant. As Renton [78] has suggested with regard to unfair
dismissal, many surveys indicate that those who begin litigation
are less interested in reward and more interested in having their
value as employee asserted by the tribunal:

"In a typical unfair dismissal case, a worker may have three
different definitions of 'victory'. First, they may desire the
emotional satisfaction of hearing from a tribunal or from the
employer that they should not have been dismissed. Second, they
may seek re-employment with the same business. Third, they may
seek compensation for their economic losses since their
dismissal: if they are now unemployed, or if they are now
employed in worse-paid job, the difference between the money that
they would have earned and what they have in fact received.
… It is often a surprise, then, to claimants to discover
that employment tribunals are practically incapable of providing
the first of these potential remedies, while even the second is
only granted exceptionally. The law focuses all its attention at
the third."

The Gibbons Review[79] was the last major investigation of employment
tribunals and was produced in response to a general negative
feeling from employers and employee representatives. It took a
fairly robust attitude towards the failure of the tribunal system
suggesting that it was too expensive, too formalistic and that
recent reforms [80] had not improved the situation. Gibbons
suggested:

"Employment tribunals are considered too costly and complex
for all involved. The requirement to focus on procedure rather
than merits is now excessive. … The Review heard that
vulnerable employees can be deterred from accessing the tribunal
system by the complexity of both the underlying law and tribunal
process. In such cases the need to confront the employer directly
before applying to a tribunal could act as a barrier to
justice."

The complexity and cost of tribunals have arisen from a
variety of sources, well documented in the literature: the rising
use of legal expertise then becomes a near requirement [81]; the use of
contingent fees tends to benefit higher earning complainants
[82]; the
attitudinal change from 'cloth cap' tribunal systems to judicial
bodies with the associated change in nomenclature from 'tribunal
chair' to 'judge' [83] ; the hardening of attitudes brought by formal
litigation procedures when dispute resolution is not utilised;
the increased up-front expense from having to produce written
arguments prior to any hearing; the argument that bodies merge
conceptually in an isomorphic manner [84]; etc.. In terms of discrimination
claims, the tendency towards complex complaints which cross the
various legal classifications, too, makes the system difficult to
work within. The costs of application to the tribunal can now be
added to this list. [85] Taken as a whole, we see that the Tribunal system has
become consistently less friendly towards the employee, become
more court-like; and generally failed in the original goal of
providing a means of effectively providing a reasonably low cost,
balanced mechanism for resolving industrial disputes. Such a
transformation from the ideals of the Donovan Report is quite
striking and perhaps reflects Zuckerman's suggestion that the
problem with civil justice is that it involves lawyers. [86] As Mummery L.J. has
suggested, the tribunal route has not managed to effect the
social policy goals of equal pay:

"8. The long-term goal of the equal pay legislation, which has
been in force since 1975, is not, of course, interminable
litigation between waged workers and their employers about their
rights. They all have other things to do and to spend their money
on. The aim is the elimination of sex discrimination against
women and against men in matters of pay. Putting that
uncontroversial aim into practice is taking a very long time
indeed, which is not surprising as the whole set up involves,
indeed requires, the clashing of rights not just between employer
and employee, but also as between groups of employees. The fact
that the rights are qualified, not absolute, has not deterred
trips to the tribunals and confrontation in the courts, which
have demonstrated that they are not necessarily the best places
in which to put an end to the injustices of discrimination in the
workplace." [My emphasis] [87]

With the 'uncontroversial' goal of improving the general
standing of a group of individuals (women in the workplace, the
disabled, etc.) it is not clear that the tribunal system has
brought forward improvements even though it has been the practice
of bodies such as the EHRC to use the tribunal system as a means
of clarifying law and for strategic reasons [88] (combined, of course, with an
attitude of encouraging employers to work towards a 'Fairer
Britain'). This method of using tribunals to focus on the
development of case law also appears to be the general role
played out by most of the institutions set up to improve fairness
in the workplace, e.g. "ombudsmen" in Finland [89] although Sweden can also bring
criminal charges. [90] The evidence is that for that group who are disabled,
the workplace remains a hostile place both in terms of entry and
in terms of dealing with unreceptive attitudes towards disability
even though litigation strategies can and do improve the general
context. For example, Susan Archibald, the individual who was
complainant in Archibald v Fife Council, [91] a judgment seen to
have marked a sea change in equality law, has suggested that
while many have told her they were aided by the judgment, she had
heard "from hundreds of people who were in similar situations to
mine but who did not get help." [92] Such a strategy also has dangers in
that a negative precedent may be set as in Wakefield - a
distinct possibility given the vagaries of litigation.

Gibbons' view was that more mediation was the solution.
However, the statutory mediation procedures which had been set
out in the 2004 legislation should, he suggested, be replaced
with "clear, simple, non-prescriptive guidelines on grievances,
discipline and dismissal in the workplace, for employers and
employees." The idealistic goal to "[s]implify employment law,
recognising that its complexity creates uncertainty and costs for
employers and employees" was also added. What are we to make of
Gibbon's and his report which received the backing of both
employer and employee organisations? Given that the trajectory of
employment tribunals had been ever more towards complexity and
cost, [93] the
goal of reducing complexity and cost appears based more in hope
than reason. The suggestion that existent mediation procedures
were not working is perhaps also an indication that mediation
per se can be problematic. However, for the purposes of
this paper, Gibbons perspective was directed towards
individualistic disputes, rather than those which dealt with a
class of claimants such as women or disabled. [94] The critic of Gibbons might
suggest that he continues to seek 'reasonable' and 'common sense'
solutions when there may be other more fundamental issues at
stake which are not particularly easy to resolve due to the wider
context of discrimination.

We can identify one more problem for the tribunals system in
the way it carries out assessment of the available evidence. In
Wakefield the Employment Tribunal had heard the
witnesses and the complainant and had come to a decision based
upon that. When the case was appealed to the Employment Appeal
Tribunal the complainant did not appear. Further, in the evidence
seemingly looked at by the EAT there was no discussion of the
wider research findings (which as noted above have been available
for several decades on the issue of employment and stammering).
Rather, the dispute was seen as detached from the wider context and
individualised, rather than related to the social issue of
disability (just the point made by Oliver [95]). [96] To those who intimately know the
problems of stammering as a disability and as an impairment the
EAT decision appears more based in the attitudes of the 1950s,
clearly misunderstanding the nature of communication in the
employment context by those who do stammer. The conclusion that
we might draw is that - given the EAT's overturning of the ET in
Wakefield - the most potentially successful type of
claim appears to be those where the discrimination was recordable
and obvious (as in harassment) rather than subtle and discreet
(whether deliberate or not). If this remains the standard
approach to be taken in future cases, the likelihood of the
tribunal system affecting the speech disability landscape seems
remote.

7. Towards an Ombudsman-like approach for disability
discrimination?

The argument underpinning this essay is that a highly
important factor at the heart of discrimination is the notion of
'merit' and its assessment. Speech disability helps show this in
the clearest manner. That the more blatant forms of
discrimination may have fallen away is true (in that equality as
a goal is no longer controversial - so long as it does not
involve positive action which remains controversial) but
something more fundamental must continue to exist or we would
have equality in practice rather than just in legislative
form.

Merit and its assessment is highlighted in the
Wakefield EAT decision - the belief that there can be no
alternative to matching the particular notion of merit which an
employer holds as appropriate. Similarly, in our judicial
appointments project, it was a surprise to those assessing merit
to be told that there existed, to others, female meritorious
candidates who were not being 'picked up' by the appointment
process. In Wakefield, the EAT replaced the concept of
'communication skill' with 'verbal skill' and - given the
precedential value - made it difficult for future applicants to
Employment Tribunals who stammer to object to the assessment of
merit based upon oral skills in interview etc. Employers will not
now have to investigate their own biases in assessing merit: the
traditional stereotypes will be sufficient to protect them in
litigation. Yet the evidence continues to be clear that while
those who stammer suffer serious detriment in employment due to
an inability to meet the presentational and communication
expectations of the employer, they are often more than capable of
operating effectively given sufficient appreciation of
alternative solutions. Reading McCrudden's paper on institutional
discrimination, one can see similarities between systemic
discrimination through a variety of institutionalised behaviours
in race and those now legitimate in speech after
Wakefield. [97]

The current criticisms of the Equality and Human Rights
Commission [98]
may be explainable by a substantial cut in funding, but prior to
its inception disability campaigners were concerned that the
disability voice would be lost in the general 'discrimination'
framework. [99]
The Disability Rights Commission had been well regarded as an
agency which undertook action in a number of ways, [100] from supporting
litigation to promoting good practice. It was a relatively
aggressive agency, where the structure of the organisation
required at least half of the Commissioners to be disabled. The
attitude towards disability of the EHRC certainly does not appear
to be as pro-active as was the DRC. Further, a decision appears
to have been made by the EHRC to disband its statutory Disability
Committee, which Sir Bert Massie has suggested as "a bad
decision" for which the commission had offered no explanation.
… I can't but be suspicious about the motivation because
there is no honourable motivation I can see." [101] Those wishing to assert
equality for the speech (and other) disabled must be concerned
that barriers are being rebuilt rather than broken down through
the institutions which were designed to resolve disability
discrimination.

More generally, what are the options, if speech disability is
to be tackled in any meaningful way? The possibilities in the
civil justice arena were well set out by Andrews: court
proceedings (we include tribunal proceedings here), arbitration
or mediation. [102] Court and tribunal proceedings are, as we have
discussed above, expensive and far from ideal for discrimination
cases. Andrews notes [103] the view of Jacob from the mid-1980s that the gates
of justice should be opened wide, "to provide adequate and
effective methods and measures, practices and procedures, reliefs
and remedies, to deal with all justiciable claims and
complaints", [104] but more recent perspectives take a more critical
view of this court centred approach. Indeed it is surprising how
many judges will mention in conversation that cases they hear
should never have reached them, suggesting other and - they feel
- more appropriate paths. [105] The view that the courts (and tribunals) are
the most suitable location for all justiciable disputes is no
longer tenable.

This leaves arbitration and mediation, the former having
significant advantages in the commercial field [106] where a near court-like
approach is taken [107] and the latter is frequently used in employment
disputes (where, for example ACAS encourages involvement). The
basic difference between the two approaches is that mediation
encourages negotiated settlement through an intermediary, and
arbitration imposes a settlement. Both require an active will to
participate.

The ideal goal of dispute must surely be an agreed settlement
which is satisfactory to both parties, or - if not to both
parties - satisfactory to the public interest. Critics have
suggested that in mediation such agreements may occur in a
context where one party has a power advantage, which is indeed
true, but the does not mean that agreement cannot be reached.
This leaves those situations where agreement is not reachable, or
where the employer refuses a mediation process, or where the
public interest is better served by external involvement. Is
arbitration a suitable method at this point, with perhaps
enforceable participation? Employment matters do have such
exemplars as in, for example, the Police Arbitration Tribunal
[108] where
police officers who do not have recourse to strike action have
such a facility. For most employment matters, however,
arbitration requires the consent of both parties before
participation - the ACAS Arbitration Scheme for unfair dismissal
and flexible working being one such forum - and thus miss out on
the enforced inclusion of the employer which comes from a
Tribunal ET1 form.

Might there be an enforced arbitration scheme which requires
submission by the employer where there are disability
discrimination claims? We suggest that this should be considered,
particularly with an arbitrator expert in disability issues. The
advantages could include:

Vexatious claims can be removed early in the
process;

Codes of conduct might be utilised rather than
legalistic statements;

Speedy resolution through relatively simple
procedures;

Confidentiality for the applicant (that is, keeping
rights given under Art. 8 ECHR and sensitive personal information
relating to disability confidential under the Data Protection
Act rather than losing them through the open justice
route);

Arbitrators could question ingrained notions of
'merit' in employment rather than only look at formal processes
(that is, they could consider whether institutionalised
discrimination is present).

Such enforced arbitration systems are not unknown in the
public sector (where the public interest is seen to be better
served by these processes - for example, the security services at
GCHQ [109]) and
have been perceived by some as a better means of resolving
disputes between the citizen and public bodies than more
traditional methods. [110] In civil matters the Financial Ombudsman Service
(FOS) operates in a relatively efficient manner and makes
decisions according to good practice and industry codes [111] and although the
Press Complaints Commission received criticism from many
quarters, the use of a clear Editors' Code of Conduct resolved
many problems in a common sense manner, and also in a way where
the code has been updated and improved. [112] These Ombudsman schemes are not
perfect mechanisms, but they allow the complainant an opportunity
to access financial resolution (in case of the FOS) and also
non-financial resolution without the burden of cost and/or
litigation. Given that the evidence from employment disputes is
that it is not always the financial aspect which is important to
applicants, but having one's position verified, an enforced
Ombudsman scheme may provide a better fit with disabled employee
needs. The three 'victory' options which Renton listed (above)
might all be made available through an Ombudsman scheme rather
than only the third. However, perhaps the most important element
would be that individual complaints would not be viewed solely
within the one-to-one dispute of employee/employer, but could be
set within the wider context of disability, and the need to
assert a 'Fairer Britain' for the disabled who - evidence
continuously demonstrates - are being failed by the current
tribunal system. There is clearly a need to have a more social
model of disability applied to the discrimination field where
each case is not treated as a one-off incident, but where the
wider context of discrimination can be viewed in an evidenced and
measured manner, and each case is viewed in the context of
reduced employment possibilities for the class in general.

The Judicial Appointments Commission approach which we
discussed earlier is instructive for any future attempt to attack
disability discrimination. It is an approach which re-assessed
the nature of merit and - where it was enabled to [113] - can be argued
to have made a difference to the type of individual who is being
recruited to judicial roles. It has done this without quotas and
without positive discrimination, simply through redefining the
notion of merit. Such is surely the start of a better way than
the failed employment tribunal model.

8. Conclusion

It is clear from the research literature that there are
considerable problems for those who are speech disabled in the
employment context. The general attitude towards those with a
communication problem in a world where communication and
appearance are important indicate that it is a disability which
can have adverse effects upon career options and choices. It is,
therefore, a disability which disability discrimination
legislation is intended to confront. Looked at in the context of
a disability framework, stammering exists as an impediment to
normal interaction (that is as a medical problem, as yet not
understood), but also as a response from the environment around
it: without some understanding of how reasonable adjustment might
be made in employment, it is not likely that discrimination can
be overcome. The underlying problem, it is argued here, is that
employers are seeking meritorious candidates (in an oral and
visual culture) and speech disability affects the merit
perceptions of employers. This makes it difficult to accommodate
stammering, particularly in terms of first interview, but also
throughout the employee's career.

We could, at this point, give up and suggest that those who
stammer will always suffer discrimination of what is,
essentially, an institutionalized kind due to the difficulty of
their meeting merit requirements. However, it is suggested here
that there is sufficient evidence that merit can be rejigged,
given understanding and an institutional desire to do so. This
was demonstrated in the NIJAC projects which the author
undertook: merit is a social construct and can be reconstructed
to suit. There is thus, we argue, the potential of a positive
resolution of discrimination - although just how merit might be
rejigged (that is, what might be the 'reasonable accommodation'
necessary) is not dealt with in this paper.

The Employment Tribunal system, tasked with rectifying
disability discrimination was argued to have failed, and did so
particularly clearly in the decision of Wakefield where
the Employment Appeal Tribunal demonstrated a lack of
knowledge in understanding stammering as a disability, and how it
might be accommodated in an employment context. This failure is
not unexpected given the wider failure of the employment tribunal
system to have substantially improved the disability employment
context: discrimination of the disabled remains a substantial
social problem.

If the tribunal system, with all its flaws, is incapable -
through its individualistic approach to remedying a major social
problem - of improving the lot of those who are disabled, is
there a better way? I suggest that there is, using a more
pro-active intervention in the workplace through enforced
arbitration. Amongst the advantages of such an approach are that
it removes the confrontational element of tribunal litigation,
utilises experts in discrimination, and can operate with the
social policy targets of fairer employment prospects for those
who are disabled.

[2] For
example the Section 9 of the Disabled Persons
(Employment) Act 1944 required employers over a certain
size "to give employment to persons registered as handicapped
by disablement" through meeting a quote (around 3%). This did
not require equality of employment opportunity. The same Act
also reserved occupations for the disabled - car park and
lift attendant - which indicated a less than flattering view
of the abilities of the disabled. The Act was not
particularly effective. See House of Commons Employment
Committee, The Operation of the Disabled Persons (Employment)
Act 1944, HC Paper 389, 1995. See also Waddington, L.,
"reassessing the employment of people with disabilities in
Europe: from quotas to anti-discrimination laws", 18 Comp.
Lab. L.J. 62 1996-1997.

[4] I have
stammered since childhood. It is interesting when I look back
and consider that I did not view the concept of disability as
covering my speech problem, though speech has certainly
always been disabling. It was only the Disability
Discrimination Act 1995 which made me see some common
ground between all those suffering from impairment. Partly,
of course, you try to cope best with the hand life deals and
it becomes 'normal'.

[5]How
fair is Britain? Equality, Human Rights and Good Relations in
2010. The First Triennial Review , Equality and Human
Rights Commission.

[13] It is
not actually clear what adjustments might be made in a
professional employment context. In discussion with my own
employer neither the individual responsible for disability
'reasonable adjustments' asked me what I felt was
appropriate. Given the nature of the role, my only suggestion
(tongue in cheek) was 'someone to speak for me.'

[32]
Hurst, R. (2003) "The International Disability Rights
Movement and the ICF", Disability and
Rehabilitation, 25 (11-12), 572-576 at p573.

[33]
Yaruss, J .S. & Quesal, R. W. (2004) "Stuttering and the
International Classification of Functioning, Disability, and
Health (ICF)", Journal of Communication Disorder,
37: 35-52. Badley, E. M. (1987). "The ICIDH: Format,
application in different settings, and distinction between
disability and handicap. A critique of papers on the
application of the ICIDH", International Disability Studies,
9 (3), 122-125.

[34] De
Kleijn-De Vrankrijker, M. (2003). "The long way from the
International Classification of Impairments, Disabilities and
Handicaps (ICIDH) to the International Classification of
Functioning, Disability and Health (ICF)", Disability and
Rehabilitation, 25: 11-12. p. 561-564 at 562

[43] See
discussion of the Judicial Selection Framework in
Judicial Appointments Commission for Northern Ireland ,
2010/11 Annual Report The feedback reported here
suggested that the assessment of competences was "challenging
but fair".
http://www.nijac.gov.uk/index/what-we-do/publications/nijac_annual_report_2010_2011.pdf

[46] There
is a substantial literature on whether being female makes a
difference to judicial outcomes. It is not clear that it
does, though Lady Hale is certainly of the opinion that it
can make a difference - see Fiona Woolf Lecture for the
Women Lawyers' Division of the Law Society Women in the
Judiciary 27 June 2014 at
www.supremecourt.uk/docs/speech-140627.pdf: "I, too, used to
be sceptical about the argument that women judges were bound
to make a difference, because women are as different from one
another as men, and we should not be expected to look at
things from a particularly female point of view, whatever
that might be. But I have come to agree with those great
women judges who think that sometimes, on occasions, we may
make a difference." What is not clear is not whether the
result of adjudication is different between male and female,
but whether they operate in different ways. Thus A may
stammer/be female and B may not stammer/be male. They can
achieve the same professional result, but not necessarily by
doing each task in an identical manner.

[47] The
Kings Fund, 2011, The future of leadership and management
in the NHS. No more heroes. Report from the Kings Fund
Commission on Leadership and Management in the NHS .
Available at
http://www.kingsfund.org.uk/sites/files/kf/future-of-leadership-and-management-nhs-may-2011-kings-fund.pdf
"The service also needs to recognise that the type of
leadership the NHS requires is changing. The old model of
'heroic' leadership by individuals needs to adapt to become
one that understands other models such as shared leadership
both within organisations and across the many organisations
with which the NHS has to engage in order to deliver its
goals. This requires a focus on developing the organisation
and its teams, not just individuals, on leadership across
systems of care rather than just institutions, and on
followership as well as leadership." [p ix]

[48]
Malleson K., "Rethinking the Merit Principle in Judicial
Selection", Journal Of Law And Society, Volume 33,
Number 1, March 2006. At p135/6.

[50]
Anecdotally reported at http://www.slatergordon.co.uk/helping-working-mums/
"Millions of new mums believe they were denied work
opportunities and they were forced to re-prove themselves
after returning to work. Nearly seven in ten claimed to have
been taken off their career path and put on what equality
campaigners have branded the 'Mummy Track' where they are
side-lined as less experienced colleagues were often promoted
ahead of them."

[52]
Employment Tribunals and EAT Statistics, 2011-12, 1 April
2011 to 31 March 2012. Ministry of Justice. Note that only 2%
of initial claims were successful in the tribunal, with 30%
being settled through the mediation of ACAS. Figures from
that date have been published in a quarterly format, and
there has also been a very substantial fall in applications
since fees were introduced. These 2011/12 figures are thus
useful indicators of 'the problem' rather than the most up to
date ones.

[62]
Section D25(i) Guidance on matters to be taken into
account in determining questions relating to the definition
of disability. This has been replaced by "Equality Act
2010 Guidance on matters to be taken into account in
determining questions relating to the definition of
disability", Office for Disability Issues, HM
Government, 2011.

[69]
Butler, C., "Wanted - straight talkers: stammering and
aesthetic labour", Work, Employment & Society,
October 2014 28: 718-734. "This recruitment assessment held
unless the men possessed skills which were scarce or valued
by the employer ... It is then that employers were
'accepting' and supportive, and an audience will 'wait for
words' or 'listen with effort'. This study suggests this is
not the norm however, and for the majority of participants
discriminatory behaviour was commonplace." [p728]

[70] In
teaching I use supporting strategies such as a largish number
of powerpoint slides. Given the ever present possible failure
of speech, whether for a few seconds or longer, my feeling is
that communication is enhanced by these. However, in end of
module feedback, there are always a few students who
complain. 'Too many slides!'.

[73]
Evidenced by the Gibbons Review: Gibbons M., "Better Dispute
Resolution: A review of employment dispute resolution in
Great Britain", Department for Trade and Industry, March 2007
at
http://webarchive.nationalarchives.gov.uk/20090609003228/http://www.berr.gov.uk/files/file38516.pdf

[74] This,
in fact, was one of the statements made frequently during the
judicial appointments research project by a number of
respondents.

[75]Equality Act 2010 Section 15: "(1) A person (A)
discriminates against a disabled person (B) if - (a) A treats
B unfavourably because of something arising in consequence of
B's disability, and (b) cannot show that the treatment is a
proportionate means of achieving a legitimate aim." Thus, for
example, that it was proportionate and justified to refuse to
place an employee who stammered in a role where fluent speech
communication was important.

[77]
Tribunals will, of course, make reasonable adjustments
themselves, but there is no available evidence to suggest
that this improves the situation for any particular
stammering complainant. Note that in Wakefield the
applicant did not wish to take part in the appeal process but
provided textual comments. The EAT noted, "He wrote to the EAT, courteously explaining his
reasons, which we respect. Those reasons are not based upon
his disability." [para 31]. It is difficult to believe
that speech disability had no part in excluding himself from
this appeal.

[82]
Hammersley G, Johnson J & Morris D (2007), "The influence
of legal representation at employment tribunals on case
outcome", Department for Business, Enterprise and Regulatory
Reform, Employment Relations Research Series No. 84:
"However, there would seem to be some indication that (as one
would perhaps expect) a relatively large proportion of cases
with high employer and low claimant day-to-day help and
advice result in claimants being unsuccessful at hearing,
whilst the proportion of private settlements is highest
amongst cases where both sides are professionally or legally
represented. The proportion of Acas settlements is highest
amongst cases where both employer and claimant have lower
levels of representation - though it must be remembered that
our multivariate analysis does not support this finding from
the (less robust) matched data in unfair dismissal
cases."

[83] This
includes following the model of detached arbiter rather than
'problem solver'. In Muschett v HM Prison Service
[2010] EWCA Civ 25. Rimmer LJ outlined this perspective: 'It
is not [the Employment Judge's] role to engage in the sort of
inquisitorial function that [counsel for the appellant]
suggests or, therefore, to engage in an investigation as to
what further evidence might be available to one of the
parties which, if adduced, might enable him to make a better
case. Their function is to hear the case the parties choose
to put before them, make findings as to the facts and to
decide the case in accordance with the law…It is not
his function to step into the evidential and factual arena''
Para 31. See the discussion in "Oy Judge! Stop
cross-examining my witness!" in Hignett, R's blog
http://www.no5.com/news-and-publications/publications/269--oy-judge-stop-cross-examining-my-witness-/
22 Apr 2014 Compare this with the view of Adler M. "Tribunals
Ain't What They Used To Be", at
http://ajtc.justice.gov.uk/adjust/articles/AdlerTribunalsUsedToBe.pdf

[88]
Reported comments of Eileen Lavery, Head of Strategic
Enforcement for the Equality Commission NI. http://www.bbc.co.uk/news/10335437,
June 2010. "The Commission supports cases on a strategic
basis and one of the key reasons is to clarify aspects of the
law where there is some uncertainty. A number of the cases
included in the review which ran to hearing were significant
in adding to our understanding of the law. Some of the cases
are highly technical and can take some time to resolve."

[93] Often
the legal complexity was driven - as Renton suggests - by
employers bringing substantial legal expertise to tribunal
litigation and then using the court appeal system afterwards.
Comments often suggest that complexity simply appeared out of
nowhere, a situation which can hardly be true.

[94] He
notes, p15, that 91% of sex discrimination cases are brought
by women. There is no suggestion of how these issues which
relate to wider groups might be settled more simply.

[97] In my
own case, being a very early user of email was of
considerable aid and, of course, the fact that much of the
academic role can be carried out through the written word and
in relative isolation from colleagues. This has not to say
that non- fluency has not been a major problem in my career
in terms of both impairment and social context.

[98] See
for example Lord Ousley's reported comments The Guardian,
28th< November 2012 and the government minister
Marina Miller that the EHRC "had struggled to deliver across
its remit or inspire confidence". The body's noble aims had
"become lost in the mire".

[99] See
Massie, B., "Delivering Effective Policies and Structures on
Equalities and Human Rights", Equalities Conference, London,
4th February 2004. Also Malik M., 'Modernising Discrimination
Law': Proposals for a Single Equality Act for Great Britain,
International Journal of Discrimination and the Law December
2007 vol. 9 no. 2 73-94 noted that structural discrimination
was unlikely to be successfully dealt with.

[102]
Andrews N., "The Three Paths of Justice: court proceedings,
arbitration and mediation in England", Springer, 2012. In
fact, there are four paths since Andrews does not deal with
tribunals. However, we can merge tribunals with courts.

[105] In
conversation one Court of Appeal judge suggested a case he
had heard (which had been further appealed) would have been
better resolved by the Financial Services Ombudsman. The
difference in costs and time would, we agreed, have been very
substantial.

[106]
Particularly confidentiality and the ability to seek awards
in other countries via the Convention on the Recognition
and Enforcement of Foreign Arbitral Awards (the 'New
York Convention').

[107]
Note though that costs can be just as high as in court
litigation since procedures emulate court proceedings.

[109]
Corby S., Public sector disputes and third party
intervention", Research Paper prepared for ACAS,
June 2003. At
www.acas.org.uk/media/pdf/5/2/public_sector_disputes_jun03-accessible-version-Nov-2011.pdf

[111]
But see Gilad, Sharon (2009) "Juggling conflicting demands:
the case of the UK Financial Ombudsman Service", Journal of
Public Administration Research and Theory, 19 (3). pp.
661-680. Gilad notes that third party complaint handers
overseeing private firms are involved in something of a dance
with these firms. My argument does not suggest that all
problems will be resolved by an imposed ombudsman scheme, but
would expect there to be a significant social benefit from
such a scheme over the current tribunal system. Further
Gilad's firms are repeat players (with a high multiple of
complaints) and build expertise in responding to the imposed
ombudsmen, something which is less likely with discrimination
complaints.

[112]
The code has now been taken over by the newspaper industry's
preferred self regulatory body, The Independent Press
Standards Organisation. See www.ipso.co.uk